Monday, March 22, 2010

GITMO: Obama’s Crockery

By William Fisher

In 2008, the Supreme Court, in a landmark decision, ruled that prisoners at Guantanamo Bay had to right to challenge the basis for their detention. That decision – a major rebuke to the Administration of then-President George W. Bush – parted the seas for a flood of habeas corpus petitions.

And there is no sign that the flood will recede any time soon.

Since the court’s ruling – the case was known as Boumediene v. Bush –42 habeas petitions have been decided in Federal court in Washington DC. Of these, 33 have been granted and nine have been denied. Most of these petitions were, in fact, filed before the Boumediene ruling. Lawyers representing GITMO detainees say hundreds of additional petitions are in the pipeline.

The High Court’s decision in Boumediene granted habeas rights to GITMO detainees, and also ruled the Military Commissions Act (MCA) of 2006 unconstitutional. But it provided no help to the judges who would be hearing these cases, and trying to thread their way between national security and tainted evidence

For example, the government’s case against one detainee seemed a sure thing. DOJ lawyers said he had traveled to Afghanistan, trained at an al Qaeda camp, stayed at a guesthouse reportedly run by terrorists, and fought at Tora Bora. Evidence against him came from his own words and from a fellow detainee.

The judge was not impressed. The court ruled that the government’s “informer” could not be relied on and the prisoner’s own testimony was suspect because it had been obtained through coercion.

This case is fairly typical. Federal judges – appointed by both Republican and Democratic Administrations – have been giving DOJ prosecutors some heavy migraines. And the headaches are likely to continue.

Numerous legal observers have remarked that this was one way the policies of the George W. Bush administration “shot us in the foot.” Prisoners who were subjected to Bush-era “enhanced interrogation techniques” were unlikely to be losers in federal courts.

There are currently about 200 detainees at Guantanamo Bay. Of these, about 90 are believed to be from Yemen, posing yet another problem: The administration has suspended repatriations to Yemen because of the activities of Al Qaeda in the Arabian Peninsula. The so-called Christmas-Day-Bomber, Umar Farouk Abdulmutallab, claims to have been trained in Yemen by this organization.

The DOJ says approximately 110 can be released – though their destinations remain unclear and/or are being negotiated with other governments. The Attorney General has said he wants to prosecute some 35 men in federal courts or before Military Commissions. That would leave about 50 the government considers too dangerous to be set free but where evidence is too dicey to stand up in court.

What happens when these 50 prisoners file their habeas corpus petitions, demanding to know the legal basis for their continued detention? The chances are the judges will order at least some of them to be set free.

But that immediately sets up another huge speed bump. Even if the government is prepared to comply with a court order to set a prisoner free, where is the prisoner to go?

In October 2008, a federal judge faced precisely that dilemma. He ordered the government to release into the United States a group of 17 Chinese Muslims held at Guantanamo.

At the U.S. District Court in Washington, Judge Ricardo M. Urbina said whatever authority the government possessed to detain the Uighurs – whom the government conceded were not enemy combatants but could not be returned to China for fear of potential persecution – had “ceased.”

Urbina said his order was based on the fact that the Uighurs’ detention had become effectively indefinite, that the government conceded they would not return to the battlefield, and that the government had provided no alternative grounds for detention.

He noted that the government’s “extensive diplomatic efforts” had yet to find a country willing to accept the Uighurs, and rejected the government’s argument that the Executive branched possessed authority to “wind-up” their detention.

The government appealed the ruling and the appeals court agreed with the government, whereupon the Uighurs’ lawyers asked the Supreme Court to review the case. The Justice Department claimed that since most of the Uighurs had since been transferred to other countries, the case was now moot; SCOTUS agreed and the court ordered the D.C. Circuit Court to take another look at the case -- testing federal judges’ powers to order Guantanamo Bay detainees to be released from custody.

But many of the approximately 50 “too dangerous to free” prisoners are likely to petition for habeas corpus and to present the courts with a similar dilemma: Trying to determine the reliability of the government’s evidence.

Was the evidence obtained through torture? And is the government producing a witness whose testimony is reliable?

Given the ubiquitous application of enhanced interrogation techniques – the very same that Vice President Cheney is so proud of – the likelihood is that coercion will be a factor in a large majority of situations coming before a judge.

And with all the built-in incentives GITMO provides to rat-out one’s fellow prisoners, it would not be surprising if the line of “jailhouse snitches” keeps getting longer.

Overlaying this panoply of legal headaches are two more:

First, if there are ever any trials of any GITMO prisoners, it is now unclear whether any will be held in Article 3 courts in the U.S. So cacophonous is the NIMBY outcry, particularly from Congresspersons, that it’s a 50-50 bet that the Obama administration will ultimately have to back off.

But civil libertarians aren’t likely to go with this decision quietly. David Frakt, a former Air Force defense lawyer for a GITMO prisoner, says relying solely on Military Commissions would “remove the option from the Executive Branch of trying suspected terrorists in Federal court, the most effective and most appropriate forum in which to try terrorist crimes. This is an unprecedented interference with the ability of the Executive branch to enforce the laws in the way it sees fit. Furthermore, many of the crimes alleged to have been committed by detainees at Guantanamo are not crimes under the law of war and do not belong in military commissions. If military commissions are the only option, this may preclude some detainees from being tried at all.”

Second, the whole of the human rights advocacy community, a good chunk of the legal professoriat, and most members of Obama’s leftwing base, believe that military commissions should be scrapped because they represent a second-class justice system. They will do whatever they can to sabotage what they refer to as “these kangaroo courts.” They are equally apoplectic on the issue of indefinite detention. That solution, they say, makes us just like the enemy.

Some observers say the President can invoke his right under the Laws of War to indefinitely hold as “enemy combatants” people who are captured on the battlefield.

But many others take issue with that conclusion. They say the people who are being held at Guantanamo are not properly labeled “enemy combatants” because most were not actually members of a fighting force with which we are at war, and most were not captured on a “battlefield.”

“The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the U.S. does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.”

On the other hand, Sens. John McCain and Joe Lieberman have just introduced legislation mandating that Military Commissions be used exclusively to try GITMO deteinees. Their legislation would also authorize “detention of enemy belligerents without criminal charges for the duration of the hostilities consistent with standards under the law of war which have been recognised by the Supreme Court."In other words, indefinite detention.

This is, perhaps, a hornet’s nest of problems that President Obama and his legal team may not have fully anticipated when, during the first week of his Presidency, he signed his executive order promising to close Guantanamo.

About Me

William Fisher has managed economic development programs for the US State Department and the US Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years. He served in the administration of President John F. Kennedy.